TD status while TN renewal is in process ?

#1
Hi there,

My employer filed an I129 for my TN extension and I received an I797. I am not sure what needs to be done for my sons TN Visa. Is there something that I need to apply on his behalf ? Or he can also remain in the same status while my renewal is in process. Thanks for your time
 

nelsona

Registered Users (C)
#2
As long as their TD (not TN, of course) heas not expired, they are fine. However, usually most TDs try to file I-539 along with the I-129, since they do not remin in status unless they file extension as well, and theit I-94s might expire before you get actual TN.
 
#3
As long as their TD (not TN, of course) heas not expired, they are fine. However, usually most TDs try to file I-539 along with the I-129, since they do not remin in status unless they file extension as well, and theit I-94s might expire before you get actual TN.
Thank you.. Sorry I meant to say my sons TD visa. It had the same expiry date as mine.
 
#4
As long as their TD (not TN, of course) heas not expired, they are fine. However, usually most TDs try to file I-539 along with the I-129, since they do not remin in status unless they file extension as well, and theit I-94s might expire before you get actual TN.
Also was my employer supposed to file for my son or i should file it myself ? When I file an I 539 and until I hear back from USCiS, can he still remain on TD status?
 

nelsona

Registered Users (C)
#5
They should have filed I-539 when sending yours, but are not obliged to. Yoursons will need to send their I-539 before their current TDs expire. This can be done either by referencing your I-129 if it is still in process, or by sending in your I-797 approval form if it comes through before their I-94s expire.
 
#6
They should have filed I-539 when sending yours, but are not obliged to. Yoursons will need to send their I-539 before their current TDs expire. This can be done either by referencing your I-129 if it is still in process, or by sending in your I-797 approval form if it comes through before their I-94s expire.
thanks Nelsona.
They did not file for my son and his TD expired on June 05, 2020. Can I file for my son's I-539 now and upload my I-797C receipt from USCIS? Does that mean he has been out of status since June 06, 2020 till now?
 

nelsona

Registered Users (C)
#7
Yes, he is out of status, and therefore CANNOT file an I-539. He must go to the border and get a new TD, but only when when your TN is approved. Until then he is at risk of expulsion. His other choice is to leave US now, and only come back when your TN is approved. That is why it is best to submit the I-129 and I-539 together.
 
#8
Yes, he is out of status, and therefore CANNOT file an I-539. He must go to the border and get a new TD, but only when when your TN is approved. Until then he is at risk of expulsion. His other choice is to leave US now, and only come back when your TN is approved. That is why it is best to submit the I-129 and I-539 together.
Thanks Nelsona. Just to confirm he is just "out of status" and not illegal in the country, correct?Will he have problem at the border when I take him to get his TD once my TN is approved?
 

nelsona

Registered Users (C)
#9
He is indeed illegal at this point. He is not merely out of status. That would be someone who has a unexpired I-94 but is no longer eligible for that status, like if you lost your job with a year left on your I-94. He is now accumulating illegal days of presence, since June. If he accumulates 180 days, he could be barred from US. This is serious. How old is your son?

That kinda goes back to my comment about coming up with all these scenarios , instead of focusing on ONE, very important one.
 
#10
He is indeed illegal at this point. He is not merely out of status. That would be someone who has a unexpired I-94 but is no longer eligible for that status, like if you lost your job with a year left on your I-94. He is now accumulating illegal days of presence, since June. If he accumulates 180 days, he could be barred from US. This is serious. How old is your son?

That kinda goes back to my comment about coming up with all these scenarios , instead of focusing on ONE, very important one.
He is 9. I really didnt know that he needed a seperate application i thought as long as my TN renewal is in process, he is okay as well. I am not sure what to do at this point.
 

nelsona

Registered Users (C)
#11
Well, it's good you asked the question, since it showed you did have some doubt that doing nothing as appropriate.

Personally, as soon as I would get my TN renewal (and I would be asking for Premium processing at this point) I would take him to the border and get a new I-94. Your other choice is for you to go to border right now and get your TN (I probably would go alone in case it failed - but if you have someone you both could stay with in Canada that would be ok) and get his TD, or do so on a second trip.
 
#12
Well, it's good you asked the question, since it showed you did have some doubt that doing nothing as appropriate.

Personally, as soon as I would get my TN renewal (and I would be asking for Premium processing at this point) I would take him to the border and get a new I-94. Your other choice is for you to go to border right now and get your TN (I probably would go alone in case it failed - but if you have someone you both could stay with in Canada that would be ok) and get his TD, or do so on a second trip.
Thanks Nelsona
 
#13
Sounds like you work for a small company without a legal department familiar with US immigration rules. The outside lawfirm they hired to help with your TN should have asked if you have dependants in the US and made suggestions on how to keep you all in legal status. Your employer should pay for all of yours and your dependants legal and USCIS filing fees.
Nelsona advice is appropriate.
 
#14
Sounds like you work for a small company without a legal department familiar with US immigration rules. The outside lawfirm they hired to help with your TN should have asked if you have dependants in the US and made suggestions on how to keep you all in legal status. Your employer should pay for all of yours and your dependants legal and USCIS filing fees.
Nelsona advice is appropriate.
Thanks Amberleaf. Yes you are right.
 

nelsona

Registered Users (C)
#15
I agree that they *should* pay for these, but they are under no obligation to. But as amber points out, since they were having someone file an I-129 for you, they should have at least advised you on your dependents. Real sloppy.
 
#16
I agree that they *should* pay for these, but they are under no obligation to. But as amber points out, since they were having someone file an I-129 for you, they should have at least advised you on your dependents. Real sloppy.
I hired an immigration attorney today. He advised that USCIS is accepting late filing of I-539 under exceptional circumstsnces related to COVID-19. He will also include an affidavit stating that this was not filed on time due to employers oversight and we could not travel to the border due to Corona related issues. Hopefully this is going to work. Thanks a lot for your help.
 

nelsona

Registered Users (C)
#17
Not really true, but hey that what lawyers do, right?

I-539s, even in normal times take a LOOOONG time to process, even worse now. Meanwhile his days of illegal presence are counting (esp. if they refuse to accept the COVID excuse.) When you do get your TN, consult again with that atty and see if they then feel you should go to the border for son's TD. I would only feel secure if he had an I-94 in hand before December.
 
#18
Not really true, but hey that what lawyers do, right?

I-539s, even in normal times take a LOOOONG time to process, even worse now. Meanwhile his days of illegal presence are counting (esp. if they refuse to accept the COVID excuse.) When you do get your TN, consult again with that atty and see if they then feel you should go to the border for son's TD. I would only feel secure if he had an I-94 in hand before December.
ya thats true. They said that i should go to the border with him when my TN is approved. He said that i can take a copy of the I539 receipt with me when i go to the border for his TD, incase if they questioned our situation
 
#19
Not really true, but hey that what lawyers do, right?

I-539s, even in normal times take a LOOOONG time to process, even worse now. Meanwhile his days of illegal presence are counting (esp. if they refuse to accept the COVID excuse.) When you do get your TN, consult again with that atty and see if they then feel you should go to the border for son's TD. I would only feel secure if he had an I-94 in hand before December.
Hi Nelsona, today I received the I-797C with I94 approved from USCIS. I didnt expect this to come through in less than 3 months. Now I think i can go to the border and get my sons TD renewed. Thanks for all your help. Do I also need to get my passport stamped? Or the new I94 would suffice?
 
#20
Hi Nelsona, today I received the I-797C with I94 approved from USCIS. I didnt expect this to come through in less than 3 months. Now I think i can go to the border and get my sons TD renewed. Thanks for all your help. Do I also need to get my passport stamped? Or the new I94 would suffice?
Sorry I received an I797 A with I 94
 
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